Criminal Appeal No. 1248 of 2019 · Bombaybench High Court · 2025
Case Details
2025:BHC-AUG:25673-DB 1 Judgment in Cri. Appeal 1248-19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1248 OF 2019Shaikh Tayyab Shaikh Babulal,Age : 36 years, Occu.: R/o.: Sunderwadi, Aurangabad,Taluka & District : Aurangabad….APPELLANT(Ori. Accused No.1)VERSUS1.The State of Maharashtra,Through the Officer InchargeChikalthana Police Station,Aurangabad, Taluka &District : Aurangabad2.X.Y.Z. (Victim)….RESPONDENTS….Senior Advocate Mr. Rajendra Deshmukh a/w Mr. Vishal Chavani/b Mr. Devang Deshmukh, Advocate for the AppellantMr. A. S. Shinde, APP, for Respondent No.1-StateMrs. Kalpana S. Kulkarni (Sonpawale), Advocate for RespondentNo.2 (Appointed through Legal Aid)…WITHCRIMINAL APPEAL NO.1141 OF 20191.Taleb Ali s/o Shaukat Ali,Age : 23 years, Occu.: NilR/o.: Hinanagar, ChikalthanaTaluka & District : Aurangabad2.Shaikh Jamil s/o Shaikh Husain Bagwan,Age : 22 years, Occ.: Nil,R/o.: Hinanagar, ChikalthanaTaluka & District : Aurangabad3.Shaikh Ashpaq s/o Shaikh Husain, 2 Judgment in Cri. Appeal 1248-19Age : 25 years, Occu.: Nil R/o.: Hinanagar, ChikalthanaTaluka & District : Aurangabad….APPELLANT(Ori. Accused Nos.2 to 4)VERSUS1.The State of Maharashtra,Through the Officer InchargeChikalthana Police Station,Aurangabad, Taluka &District : Aurangabad2.X.Y.Z.….RESPONDENTS….Mr. Imran G. Durani, Advocate for the AppellantMr. A. S. Shinde, APP for Respondent No.1-StateMr. S. P. Salgar, Advocate for Respondent No.2 (Appointed throughLegal Aid)….WITHCRIMINAL APPEAL NO.174 OF 2024Shaikh Jamil Shaikh Husain Bagwan,Age : 26 years, Occu.: NilR/o.: Heena Nagar, Chikalthana,Taluka & District : Aurangabad….APPELLANT(Ori. Accused No.3)VERSUS1.The State of Maharashtra,Through the Officer InchargeChikalthana Police Station,Aurangabad, Taluka &District : Aurangabad2.X.Y.Z. (Victim)….RESPONDENTS….Mr. Sudarshan J. Salunke, Advocate for the AppellantsMr. A. S. Shinde, APP for Respondent No.1-State …. 3 Judgment in Cri. Appeal 1248-19CORAM :NITIN B. SURYAWANSHI ANDSANDIPKUMAR C. MORE, JJ.RESERVED ON : 12/08/2025PRONOUNCED ON : 22/09/2025 JUDGMENT : ( Per Sandipkumar C. More, J.)1.The original accused in Sessions Case No.263 of 2015, havefiled all these appeals challenging their conviction recorded by thelearned Additional Sessions Judge, Aurangabad (hereinafterreferred to as ‘the learned trial judge’) for the offence under Section376(D), 323, 504 & 506 read with Section 34 of the Indian PenalCode (IPC for short) vide judgment and order dated 18/10/2019.The learned trial judge has convicted all these appellants – accusedas follows :i)The accused No.1 Shaikh Tayyab Shaikh Babulal, Age: 32 years, R/o.: Sunderwadi, Tq. Dist. Aurangabad,No.2 Taleb Ali Shaukat Ali, Age : 20 years, No.3Shaikh Jamil Shaikh Husain Bagwan, Age : 19 years,and No.4 Shaikh Ashpaq Shaikh Husain, Age 22years, all R/o.: Hinanagar Chikalthana, Tq. Dist.Aurangabad are hereby convicted as per section235(2) of the Code of Criminal Procedure for theoffence punishable under section 376(D) 323, 504 &506 of the Indian Penal Code, 1860. 4 Judgment in Cri. Appeal 1248-19ii)The accused No.1 Shaikh Tayyab Shaikh Babulal,No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil ShaikhHusain Bagwan and No.4 Shaikh Ashpq ShaikhHusain are convicted for the offence punishable undersection 376(D) of I.P.C. and sentenced to sufferrigorous imprisonment for life each and to pay fine ofRs.50,000/- (Rs. Fifty Thousand only) each.iii)The accused No.1 Shaikh Tayyab Shaikh Babulal,No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil ShaikhHusain Bagwan and No.4 Shaikh Ashpq ShaikhHusain are convicted for the offence punishable undersection 323 r.w. 34 of I.P.C. and sentenced to sufferrigorous imprisonment for six months each.iv)The accused No.1 Shaikh Tayyab Shaikh Babulal,No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil ShaikhHusain Bagwan and No.4 Shaikh Ashpq ShaikhHusain are convicted for the offence punishable undersection 504 r.w. 34 of I.P.C. and sentenced to sufferrigorous imprisonment for one year each.v)The accused No.1 Shaikh Tayyab Shaikh Babulal,No.2 Taleb Ali Shaukat Ali, No.3 Shaikh Jamil ShaikhHusain Bagwan and No.4 Shaikh Ashpq ShaikhHusain are convicted for the offence punishable undersection 506 r.w. 34 of I.P.C. and sentenced to sufferrigorous imprisonment for one year each. 2.Criminal Appeal No.1248 of 2019 is filed by the originalaccused No.1, whereas Criminal Appeal No.174 of 2024 is filed by 5 Judgment in Cri. Appeal 1248-19original accused No.3. Likewise, Criminal Appeal No.1141 of 2019is filed by original Accused Nos.2 & 4.3.Prosecution case can be summarized as follows :The victim (PW-1) i.e. present respondent No.2 lodged a reporton 28/08/2015 at about 2.30 a.m. to 3.00 a.m. with ChiklathanaPolice Station, Aurangabad alleging that on 27/08/2015 at about8.30 p.m. she had gone with her friend Maruti Waghmare (PW-5) inthe instant case, for roaming on Cambridge School road onmotorcycle. When they were chatting after parking their motorcycleon the side of the road, all the appellants – accused came on onemotor bike. They passed the victim and Maruti and went ahead.However, all of them again returned back to the victim and Maruti.They parked their motorcycle bearing Registration No.MH-20-CD-7980. Then all of them started assaulting her. Out of theappellants- accused, two started beating Maruti (PW-5) and tookhim aside. Rest of the two appellants dragged her to Bajra cropand tore her clothes. When the victim protested, one of themgagged her mouth and one of them threatened her to kill on thepoint of knife. Thereafter, they forcibly removed her clothes andcommitted forcible sexual intercourse with her. Somehow, thevictim escaped and came to Maruti and thereafter they went to 6 Judgment in Cri. Appeal 1248-19Cambridge Square for help. Fortunately, they noticed a patrollingvan of police. Thereafter, when they again went to the spot insearch of the appellants – accused, but by then the appellants –accused had fled from the spot. Then the victim and Maruti cameto MIDC CIDCO Police Station and the police authorities of thatpolice station after inquiry brought them to Chikalthana PoliceStation, where the victim lodged the report. Accordingly,Chikalthana police authorities registered a crime against unknownaccused persons initially for the offence punishable under Section376(D), 323, 504, 506, 109 & 114 of IPC. After lodging the initialreport on 28/08/2015, the victim also gave supplementarystatements from time to time and contended that all the appellants– accused had in fact committed gang rape on her and thatregistration number of their motor bike was in fact MH-20-CD-7989 and not MH-20-CD-7980.API, Kalpana Rathod (PW-13) from Chikalthana Police Stationtook over the investigation of the crime and sent the victim formedical examination, where her samples were collected by themedical officer Dr. Shamalee Mistry (PW-10). During theinvestigation, API Kalpana Rathod arrested the appellants –accused and held Test Identification Parade through Executive
Legal Reasoning
41 Judgment in Cri. Appeal 1248-19(supra), Delhi, wherein it is observed in para Nos.15 & 16 asfollows :“15. In our considered opinion, the ‘sterling witness’should be of a very high quality and caliber whoseversion should, therefore, be unassailable. TheCourt considering the version of such witnessshould be in a position to accept it for its facevalue without any hesitation. To test the quality ofsuch a witness, the status of the witness would beimmaterial and what would be relevant is thetruthfulness of the statement made by such awitness. What would be more relevant would bethe consistency of the statement right from thestarting point till the end, namely, at the timewhen the witness makes the initial statement andultimately before the Court. It should be naturaland consistent with the case of the prosecutionqua the accused. There should not be anyprevarication in the version of such a witness. Thewitness should be in a position to withstand thecross- examination of any length and howsoeverstrenuous it may be and under no circumstanceshould give room for any doubt as to the factum ofthe occurrence, the persons involved, as well as,the sequence of it. Such a version should have co-relation with each and everyone of othersupporting material such as the recoveries made,the weapons used, the manner of offence 42 Judgment in Cri. Appeal 1248-19committed, the scientific evidence and the expertopinion. The said version should consistentlymatch with the version of every other witness. Itcan even be stated that it should be akin to thetest applied in the case of circumstantial evidencewhere there should not be any missing link in thechain of circumstances to hold the accused guiltyof the offence alleged against him. Only if theversion of such a witness qualifies the above testas well as all other similar such tests to beapplied, it can be held that such a witness can becalled as a ‘sterling witness’ whose version can beaccepted by the Court without any corroborationand based on which the guilty can be punished.To be more precise, the version of the said witnesson the core spectrum of the crime should remainintact while all other attendant materials, namely,oral, documentary and material objects shouldmatch the said version in material particulars inorder to enable the Court trying the offence to relyon the core version to sieve the other supportingmaterials for holding the offender guilty of thecharge alleged.16. In the anvil of the above principles, when we testthe version of PW- 4, the prosecutrix, it isunfortunate that the said witness has failed topass any of the tests mentioned above. There istotal variation in her version from what was stated 43 Judgment in Cri. Appeal 1248-19in the complaint and what was deposed before theCourt at the time of trial. There are materialvariations as regards the identification of theaccused persons, as well as, the manner in whichthe occurrence took place. The so-called eyewitnesses did not support the story of theprosecution. The recoveries failed to tally with thestatements made. The FSL report did not co-relatethe version alleged and thus the prosecutrix failedto instill the required confidence of the Court inorder to confirm the conviction imposed on theappellants”.33.To determine the nature of evidence being of sterling quality,the facts of each case are to be considered. Here it is a case of gangrape and therefore, the evidence of victim needs to be consideredwith utmost sensitivity. The Hon’ble Apex Court in the case ofState of Punjab vs. Gurumit Singh and others (supra) andothers, has discussed as to how the evidence of victim of gang rape,is to be appreciated. It is observed in para No.8 & 21 of the saidjudgment as follows :“8.The grounds on which the trial court disbelieved the versionof the prosecutrix are not at all sound. The findings recordedby the trial court rebel against realism and lose their sanctityand credibility. The court lost sight of the fact that theprosecutrix is a village girl. She was a student of Xth Class. It 44 Judgment in Cri. Appeal 1248-19was wholly irrelevant and immaterial whether she wasignorant of the difference between a Fiat, an Ambassador or aMaster car. Again, the statement of the prosecutrix at the trialthat she did not remember the colour of the car, though shehad given the colour of the car in the FIR was of no materialeffect on the reliability of her testimony. No fault could also befound with the prosecution version on the ground that theprosecutrix had not raised an alarm while being abducted.The prosecutrix in her statement categorically asserted that assoon as she was pushed inside the car she was threatened bythe accused to keep quiet and not to raise any alarmotherwise she would be killed. Under these circumstances todiscredit the prosecutrix for not raising an alarm while thecar was passing through the Bus Adda is travesty of justice.The court over-looked the situation in which a poor helplessminor girl had found herself in the company of threedesperate young men who were threatening her andpreventing her from raising any alram. Again, if theinvestigating officer did not conduct the investigationproperly or was negligent in not being able to trace out thedriver or the car, how can that become a ground to discreditthe testimony of the prosecutrix? The prosecutrix had nocontrol over the investigating agency and the negligence of aninvestigating officer could not affect the credibility of thestatement of the prosecutrix. Trial Court fell in error fordiscrediting the testimony of the prosecutrix on that account.In our opinion, there was no delay in the lodging of the FIReither and if at all there was some delay, the same has notonly been properly explained by the prosecution but in thefacts and circumstances of the case was also natural. The 45 Judgment in Cri. Appeal 1248-19courts cannot over-look the fact that in sexual offences delayin the lodging of the FIR can be due to variety of reasonsparticularly the reluctance of the prosecutrix or her familymembers to go to the police and complain about the incidentwhich concerns the reputation of the prosecutrix and thehonour of her family. It is only after giving it a cool thoughtthat a complaint of sexual offence is generally lodged. Theprosecution has explained that as soon as Trilok Singh PW6,father of the prosecutrix came to know from his wife, PW7about the incident he went to the village sarpanch andcomplained to him. The sarpanch of the village also got intouch with the sarpanch of village Pakhowal, where in thetube well kotha of Ranjit Singh rape was committed, and aneffort was made by the panchayats of the two villages to sittogether and settle the matter. It was only when thePanchayats failed to provide any relief or render any justiceto the prosecutrix, that she and her family decided to reportthe matter to the police and before doing that naturally thefather and mother of the prosecutrix discussed whether or notto lodge a report with the police in view of the repercussions itmight have o n the reputation and future prospects of themarriage etc. of their daughter. Trilok Singh PW6 truthfullyadmitted that he entered into consultation with his wife as towhether to lodge a report or not and the trial court appears tohave misunderstood the reasons and justification for theconsultation between Trilok Singh and his wife when it foundthat the said circumstance had rendered the version of theprosecutrix doubtful. Her statement about the manner inwhich she was abducted and again left near the school in theearly hours of next morning has a ring of truth. It appears 46 Judgment in Cri. Appeal 1248-19that the trial court searched for contradictions and variationsin the statement of the prosecutrix microscopically, so as todisbelieve her version. The observations of the trial court thatthe story of the prosecutrix that she was left near theexamination center next morning at about 6 a.m. was "notbelievable" as `the accused would be the last persons toextend sympathy to the prosecutrix" are not at all intelligible.The accused were not showing "any sympathy" to theprosecutrix while driving her at 6.00 a.m. next morning to theplace from where she had been addicted but on the other handwere removing her from the kotha of Ranjit Singh and leavingher near the examination center so as to avoid being detected.The criticism by the trial court of the evidence of theprosecutrix as to why she did not complain to the ladyteachers or to other girl students when she appeared for theexamination at the center and waited till she went home andnarrated the occurrence to her mother is unjustified. Theconduct of the prosecutrix in this regard appears to us to bemost natural. The trial court over-looked that a girl, in atradition bound non-permissive society in India, would beextremely reluctant even to admit that any incident which islikely to reflect upon her chastity had occurred, beingconscious of the danger of being ostracized by the society orbeing looked down by the society. Her not informing theteachers or her friends at the examination center under thecircumstances cannot detract from her reliability. In thenormal course of human conduct, this unmarried minor girl,would not like to give publicity to the traumatic experienceshe had undergone and would feel terribly embarrassed inrelation to the incident to narrate it to her teachers and others 47 Judgment in Cri. Appeal 1248-19over-powered by a feeling of shame and her naturalinclination would be to avoid talking about it to any one, lestthe family name and honour is brought into controversy.Therefore her informing to her mother only on return to theparental house and no one else at the examination centerprior thereto is an accord with the natural human conduct ofa female. The courts must, while evaluating evidence, remainalive to the fact that in a case of rape, no self-respectingwoman would come forward in a court just to make ahumiliating statement against her honour such as is involvedin the commission of rape on her. In cases involving sexualmolestation, supposed considerations which have no materialeffect on the veracity of the prosecution case or evendiscrepancies in the statement of the prosecutrix should not,unless the discrepancies are such which are of fatal nature, beallowed to throw out an otherwise reliable prosecution case.The inherent bashfulness of the females and the tendency toconceal outrage of sexual aggression are factors which theCourts should not over-look. The testimony of the victim insuch cases is vital and unless there are compelling reasonswhich necessitate looking for corroboration of her statement,the courts should find no difficulty to act on the testimony of avictim of sexual assault alone to convict an accused where hertestimony inspires confidence and is found to be reliable.Seeking corroboration of her statement before relying uponthe same, as a rule, in such cases amounts to adding insult toinjury. Why should the evidence of a girl of a woman whocomplains of rape or sexual molestation, be viewed withdoubt, disbelief or suspicion? The Court while appreciatingthe evidence of a prosecutrix may look for some assurance of 48 Judgment in Cri. Appeal 1248-19her statement to satisfy its judicial conscience, since she is awitness who is interested in the outcome of the charge levelledby her, but there is no requirement of law to insist uponcorroboration of her statement to base conviction of anaccused. The evidence of a victim of sexual assault standsalmost at par with the evidence of an injured witness and toan extent is even more reliable. Just as a witness who hassustained some injury in the occurrence, which is not found tobe self inflicted, is considered to be a good witness in thesense that he is least likely to shield the real culprit, theevidence of a victim of a sexual offence is entitled to greatweight, absence of corroboration notwithstanding.Corroborative evidence is not an imperative component ofjudicial credence in every case of rape. Corroboration as acondition for judicial reliance on the testimony of theprosecutrix is not a requirement of law but a guidance ofprudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault isnot an accomplice to the crime but is a victim of anotherpersons's lust and it is improper and undesirable to test herevidence with a certain amount of suspicion, treating her as ifshe were an accomplice. Inferences have to be drawn from agiven set of facts and circumstances with realistic diversityand not dead uniformity lest that type of rigidity in the shapeof rule of law is introduced through a new form of testimonialtyranny making justice a casualty. Courts cannot cling to afossil formula and insist upon corroboration even if, taken asa whole, the case spoken of by the victim of sex crime strikesthe judicial mind as probable. In State of Maharashtra Vs.Chandraprakash Kewalchand Jain, J. (1990 (1) SCC 550) 49 Judgment in Cri. Appeal 1248-19Ahmadi, J. (as the Lord Chief Justice then was) speaking forthe Bench summarised the position in the following words:"A prosecutrix of a sex offence cannot be put on parwith an accomplice. She is in fact a victim of the crime.TheEvidence Act nowhere says that her evidence cannot beaccepted unless it is corroborated in material particulars. Sheis undoubtedly a competent witness under Section 118 and herevidence must receive the same weight as is attached to aninjured in cases of physical violence. The same degree of careand caution must attach in the evaluation of her evidence asin the case of an injured complainant or witness and no more.What is necessary is that the court must be alive to andconscious of the fact that it is dealing with the evidence of aperson who is interested in the outcome of the charge levelledby her. If the court keeps this in mind and feels satisfied that itcan act on the evidence of the prosecutrix, there is no rule oflaw or practice incorporated in the Evidence Act similar toillustration (b) to Section 114 which requires it to look forcorroboration. If for some reason the court is hesitant to placeimplicit reliance on the testimony of the prosecurtix it maylook for evidence which may lend assurance to her testimonyshort of corroboration required in the case of an accomplice.The nature of evidence required to lend assurance to thetestimony of the prosecutrix must necessarily depend on thefacts and circumstances of each case. But if a prosecutrix isan adult and of full understanding the court is entitled to basea conviction of her evidence unless the same is shown to beinfirm and not trustworthy. If the totality of the circumstancesappearing on the record of the case disclose that theprosecutrix does not have a strong motive to falsely involve 50 Judgment in Cri. Appeal 1248-19the person charged, the court should ordinarily have nohesitation in accepting her evidence."21.Of late, crime against women in general and rape inparticular is on the increase. It is an irony that while we arecelebrating women's rights in all spheres, we show little or noconcern for her honour. It is a sad reflection on the attitude ofindifference of the society towards the violation of humandignity of the victims of sex crimes. We must remember that arapist not only violates the victim's privacy and personalintegrity, but inevitably causes serious psychological as wellas physical harm in the process. Rape is not merely a physicalassault - it is often destructive of the whole personality of thevictim. A murderer destroys the physical body of his victim, arapist degrades the very soul of the helpless female. TheCourts, therefore, shoulder a great responsibility while tryingan accused on charges of rape. They must deal with suchcases with utmost sensitivity. The Courts should examine thebroader probabilities of a case and not get swayed by minorcontradictions or insignificant discrepancies in the statementof the prosecutrix, which are not of a fatal nature, to throw outan otherwise reliable prosecution case. If evidence of theprosecutrix inspirers confidence, it must be relied uponwithout seeking corroboration of her statement in materialparticulars. If for some reason the Court finds it difficult toplace implicit reliance on her testimony, it may look forevidence which may lend assurance to her testimony, short ofcorroboration required in the case of an accomplice. Thetestimony of the prosecutrix must be appreciated in thebackground of the entire case and the trial court must be alive 51 Judgment in Cri. Appeal 1248-19to its responsibility and be sensitive while dealing with casesinvolving sexual molestations.”34.Though it appears that the investigating officer has recordedstatements of the victim repeatedly and that though the victiminitially stated that rape was committed by two persons, butthereafter, stated that all the four appellants – accused committedrape on her. Further, she has also given description of theappellants – accused and in the manner in which they assaultedher and raped her. It is also to be borne in mind that after suchincident of gang rape, she must have gone into shocked state andtherefore, it is quite possible for her to take some time to recollectthe entire incident and for that purpose she must have taken timeto state before the police machinery about involvement of all theappellants – accused in the crime. Therefore such improvisation onthe part of the victim cannot be said as unreliable or not of sterlingquality. As such, we discard the submissions of learned counselMr. Salunke to that effect. 35.On going through the evidence of the victim (PW-1) and eyewitness Maruti (PW-5) it appears that the victim has specificallystated that the appellants had torn her top and the piece of the topwas recovered from the spot when the spot panchanamam was 52 Judgment in Cri. Appeal 1248-19carried out. Umakant Dhatinge (PW-2) i.e. the panch witness ofthe spot panchanamma, has already stated bout the seizure ofsuch piece of cloth. It is extremely important to note that as perthe Chemical Analyser Report (Exhibit-181) the piece of top of thevictim and the piece of cloth seized from the spot of incident, werefound same. Therefore, it is clearly established that the appellants– accused had torn the clothes of victim. Moreover, she hasminutely described the manner in which all the appellants –accused committed rape on her. We have already mentioned thesaid fact earlier while discussing the evidence of victim, whereinshe deposed as to how the incident took place. Moreover, thevictim as well as Maruti (PW-5) have identified all the appellants –accused in Harsool Jail, wherein Test Identification Parades of theappellants – accused were conducted. Their evidence in respect ofidentification of the accused is also supported by PW-6 & 7, whowere the panch witnesses to those Test Identification Parades. Wehave already discarded the objection of the learned counsel for theappellants in respect of conducting those Test IdentificationParades contrary to the Criminal Manual. Therefore, the evidenceof the victim, PW-5, PW-6, PW-7 and PW-13 has clearly established 53 Judgment in Cri. Appeal 1248-19the identification of the appellants – accused persons in theaforesaid Test Identification Parades.36.Learned counsel for the appellants – accused strenuouslyargued that despite such forceful sexual intercourse with the victimby the appellants – accused, not a single injury was found either onthe private part of the victim or rest parts of her body. Learnedcounsel Mr. S. J. Salunke heavily relied on the judgment of theHon’ble Apex Court in the case of Lalliram and another vs. Stateof M. P. (supra), wherein it is observed that it is true that injury isnot a sine qua non for deciding whether rape has been committed,but it has to be decided on factual matrix of each case. Thus,relying on this observation, the learned counsel Mr. Salunkesubmitted that the victim must have resisted for the criminal act ofaccused and while dragging her, certain injuries must havesustained to her, but in the absence of such injuries, theprosecution's case has certainly become doubtful and raisedsuspicion. However, considering the fact of this case it is extremelyimportant to note that all the appellants – accused committed rapeon the victim at the point of knife. The said knife is also recoveredat the instance of one of the appellants and therefore, it is quitepossible that due to fear of life, the victim must have remained 54 Judgment in Cri. Appeal 1248-19silent. Moreover, the appellants – accused must have overpoweredher and therefore, there was no resistance. Under suchcircumstance absence of injury on the person of the victim cannotbe treated as doubtful circumstance since Dr. Shamalee Mistry(PW-10) has clearly stated that the victim had given history ofsexual assault by four persons coupled with allegations of oral sexalso. Dr. Shamalee Mistry (PW-10) has also opined that there wasforceful intercourse with the victim. Even though there was an oldtear to her hymen, which could be possible due to her physicalrelations with Maruti (PW-5) earlier to the incident, but it does notlead to the inference that no rape was committed on her. Besides,the scientific evidence also supports the case of the prosecution.37.The evidence of witnesses from medical profession namelyPW-4, 9, 10, 11, 12 and 14, who had examined the victim and theappellants – accused persons and collected their respectivesamples, reveals that the same were separately collected and dulysealed. Further the identification forms in respect of all theappellants – accused are duly proved by PW-9, whereas PW-14 hasproved the identification form of the victim at Exhibit-196. All thesamples of the appellants–accused and the victim were sealedwhile being forwarded to the police, from where they were sent for 55 Judgment in Cri. Appeal 1248-19chemical analysis and DNA profiling. Though the semen samplesof accused Nos.2 & 3 were not collected by PW-2 & 3 but bloodsamples of all the accused and the victim were sent for DNAprofiling after duly collected by PW-9 and PW-14. The reportExhibit-191 issued by FSL, Kalina Mumbai is also important one.In fact clothes of the victim consisting nicker and Salwar atArticles-2 & 3 alongwith her samples namely oral swab, vavinalawab, nail clipping and swab, pubic hair and DNA samples of theappellants – accused were sent to examination to FSL, Kalina,Mumbai. The report Exhibit-191 indicates that hair found onnicker of the victim was of accused No.4 Shaikh Ashpak Hussain.Hair found on underwear of Shaikh Tayyab and accused No.2Shaikh Taleb Ali, accused No.3 Shaikh Jamil and the hair of thevictim, were found identical and from the same female origin. Thereport further indicates that semen detected on nicker and Salwarof the victim and the blood sample of accused No.4 Shaikh Ashpakand accused No.2 Taleb Ali were from same paternal progeny. It isto be noted that the victim has stated that all the appellants –accused committed rape on her but samples of accused Nos.1 & 3were not traced on her clothes. However, the hair found onunderwear of accused Nos.1 & 3 found identical with the hair of 56 Judgment in Cri. Appeal 1248-19the victim. Therefore, the DNA report Exhibit-191 has definitelyproved the proximity of accused No.1 and 3 with the prosecutrix atthe time of the incident. It is to be noted that the learned TrialJudge opined that only Accused Nos. 2 and 4 committed rape onthe victim, while Accused Nos. 1 and 3 were treated merely asfacilitators. However, when the prosecutrix has stated that all fouraccused committed rape on her, then in the light of observation ofthe Hon’ble Apex Court in the case of State of Panjab vs. GurumitSingh and others (supra) the testimony of the prosecutrix needs tobe believed being reliable and trustworthy. Other minordiscrepancies in her evidence has to be kept aside. Therefore,merely because samples of accused Nos.1 & 3 did not match withthe samples of the victim, it cannot be finally concluded that theydid not commit rape on her. The testimony of the victim definitelyinspires confidence and therefore, it can safely be inferred that allthe appellants- accused must have committed gang rape on thevictim. 38.Further, the evidence of the victim and Maruti (PW-5) clearlyindicates that two accused persons had first caught hold of Maruti(PW-5) and remaining two dragged the victim in Bajra crop andcommitted rape on her. Further, it is also evident that Maruti (PW- 57 Judgment in Cri. Appeal 1248-195) was beaten initially by the appellants – accused persons, whohad caught hold him and thereafter they both committed rape onthe victim. The medical certificate Exhibit-115 issued by PW-4 hasindicted that Maruti (PW-5) had sustained contusions and abrasionand trauma to his stomach. According to Syed Aqeeb (PW-4) thoseinjuries were caused within 24 hours of his examination. As such,it is established that Maruti (PW-5) was beaten by those appellants– accused in furtherance of their common intention. The knifeused for threatening the victim at the time of incident, is alsorecovered at the instance of accused No.2 Taleb Ali. Moreover, thevictim herself has given description of all the appellants – accusedto police and also subsequently identified them in TestIdentification parades. The ocular evidence in the instance case iswell supported by medical as well as scientific evidence. 39.Thus, considering all these aspects, the prosecution hasdefinitely established the presence of all the appellants – accusedon the spot. It is also established that the appellants – accusedthreatened the victim and Maruti (PW-5) by assaulting them andthereafter by dragging the victim in Bajra crop committed gangrape on her. The conduct of all the appellants – accused definitelyindicates that they shared common intention to commit the offence. 58 Judgment in Cri. Appeal 1248-19Thus, the prosecution has clearly established the guilt of all theappellants – accused beyond all reasonable doubts. The learnedtrial judge by rightly appreciating the entire evidence on record hasconvicted the appellants – accused as mentioned above. Onindependent scrutiny of the entire evidence and material on record,we are also of the same opinion. In view of the same, there is noreasons to interfere with the impugned judgment and order. In theresult, all the appeals stand dismissed.40.The fees of both learned counsel appointed through Legal Aidto represent the victim shall be quantified as per the rules and paidto them as expeditiously as possible. (SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.) VS Maind/-
Arguments
7 Judgment in Cri. Appeal 1248-19Magistrate- Ms. M. B. Varade. API, Kalpana Rathod then drewnecessary panchanamas including the spot panchnama and otherseizure panchanamas. The samples of the appellants – accusedwere also obtained and their bike bearing Registration No. MH-20-CD-7989 was also seized. On completion of investigation, theappellants – accused were charge sheeted as mentioned above.The learned trial judge conducted the trial by examining asmany as 14 witnesses and thereafter convicted all the appellants –accused as mentioned above on the basis of evidence.4.Learned senior counsel Mr. Rejendra Deshmukh raised somany doubts about the evidence of prosecution and pointed outloop holes therein. According to him, the victim (PW-1) and herfriend Maruti (PW-5) are the main witnesses in the instant crime.He submits that both of them were not knowing the appellants /accused prior to the incident and therefore, the report was lodgedby the victim against unknown persons. He further submits thatthe victim has made improvement in her statement to implicate theappellants – accused. According to him, the victim was not able tosee the appellants – accused as she admitted in her cross-examination that there was no sufficient light on the spot ofincident. He contended that there was no full moon night on the 8 Judgment in Cri. Appeal 1248-19day of incident as claimed but it was in fact after two days of theincident. He further, pointed out that Maruti (PW-5) admitted inhis cross-examination that there was shower after the incident andtherefore, it can easily be inferred that there was cloudy conditionat the time of incident and thus, the possibility of having moonlight was very much doubtful. He further submitted that onlydetails of bike of the appellants – accused were given and not ofMaruti (PW-5). Initially, the registration number of bike of theappellant – accused was wrongly stated, which was correctedthereon and therefore, the involvement of all the appellants-accused in the present crime, is doubtful. He further submittedthat even in spite of allegation of gang rape by four persons, noinjuries are found on her person. As such, obvious inference canbe drawn that there was no resistance on her part and therefore, itcannot be said that forceful sexual intercourse was committed byall the appellants – accused with her. He pointed out that spotpanchanama is also doubtful since how the police machinery wasable to give correct measurement as mentioned therein when it hascome on record that they have not carried any measurement tape.He pointed out that all the panchanamas of seizure of clothes ofappellants – accused are stereo type. Further, on the spot of 9 Judgment in Cri. Appeal 1248-19incident everything was within 24 fits but Maruti (PW-5) deposedthat he was 100 meters away from the victim when the alleged actof gang rape was being committed. The investigating officer did notseize mobiles either of the appellants – accused or the victim andMaruti (PW-5) to establish their proximity with the spot of theincident at the relevant time. He further submitted that the victimhas stated that motorcycle of the appellants – accused was withmilk cans but Maruti (PW-5) is silent on this aspect. Moreover, thephotographs of the said motor bike of the appellants – accused donot show any fixtures or arrangement to attach such milk cans. Healso raised doubt about place where Test Identification Parade ofthe appellants – accused was conducted. According to him, therewere open windows to the wall where the Test Identification Paradewas conducted and therefore, possibility of watching the accusedwas very much there for the victim and Maruti (PW-5) prior to theTest Identification Parade. Moreover, the medical history given bythe victim to Medical Officer Dr. Shamalee Mistriy is different fromthe contents of the FIR. He further submitted that there were nomarks of dragging the victim on the spot and despite cutting thepetrol tube of bike of Maruti (PW-5), no residues of petrol werefound on the spot. He further submitted that the investigating 10 Judgment in Cri. Appeal 1248-19officer did not bother to call sketch artist even after the victim hadgiven descriptions of all the appellants – accused. He accused theinvestigating officer for sending the samples and clothes of thevictim as well as appellants – accused for chemical analysis and formatching DNA profiles belatedly and thus, raised doubt that thesamples of the victim could have spread on the clothes of theappellants -accused to connect them with the crime. Thus, thelearned senior counsel Mr. Deshmukh submits that the appellanti.e. accused No.1, has been falsely implicated in the present crime.He also relied on following judgments :Kattavellai @ Devakar vs. State of Tamilnadu,2025 LiveLaw (SC) 703; 5.Learned counsel for appellant Nos.2 & 4 also supported thesubmissions made on behalf of accused No.1 and additionallysubmitted that the victim has given two different statements inrespect of her clothes. He, thus, pointed out possibility of plantingof clothes. He also pointed out that Maruti (PW-5) has admittedthat after the incident there was rain and therefore, there could notbe any marks of scuffle. He pointed out that in the seizure ofclothes of accused No.2, nothing is mentioned that on the clothesof accused No.2 long and short hair were found. He specifically 11 Judgment in Cri. Appeal 1248-19pointed out that there was delay of 8 to 9 days in conducting TestIdentification Parade of the appellants – accused and in betweenthere was every possibility that the victim and Maruti (PW-5) musthave seen them. He also pointed out that the samples collected bythe investigating officer were in her custody for about three daysand no semen of accused No.2 and 4 were forwarded. Thus, hesubmitted out that there is no trustworthy evidence in respect ofalleged act of the gang rape at the hands of the all the appellants –accused.6.Learned counsel Mr. S. J. Salunke for accused No.3 i.e.appellant in Criminal Appeal No.174 of 2024, vehementlysubmitted that the victim has improved her statements from timeto time and therefore, her evidence cannot be treated as of starlingquality. He pointed out that though the victim stated that all thefour appellants / accused committed forcible sexual intercoursewith her, but after considering evidence the learned trial judge hascome to the conclusion that only two persons committed sexualintercourse with the victim and other two only facilitated for thesame. He pointed out that since beginning the victim is notconsistent in respect of the manner in which the incident hadtaken place. He pointed out that the story of the victim is 12 Judgment in Cri. Appeal 1248-19unbelievable since despite dragging her on the spot incident, therewere no injuries found on her person. He pointed out that opinionof Dr. Shamalee Mistry (PW-10), who examined the victim after theincident, has erred in giving opinion about sexual assault on thevictim since no reasons are given by her to that effect. He alsopointed out that the Test Identification Parade held to identify theappellants – accused is doubtful and conducted against theguidelines laid down in Criminal Manual. According to him, onlytwo persons at one time are to be identified but in the instant case,the victim initially identified one accused and subsequentlyidentified three accused in the same Test Identification Parade. Hefurther pointed out that in spite of seizure of the clothes of theappellants – accused, only 10 minutes gap is there in all thepanchanamas. Therefore, it can be inferred that the investigatingofficer must have prepared all these panchanamas while sitting inthe police station only. He, thus, submitted that due to suchdoubtful panchanamas, scientific evidence namely chemicalanalysis and matching of DNA profile, cannot be believed. He alsoexpressed doubt of planting of evidence against the appellants –accused. According to him, the learned trial judge definitely erredin awarding life imprisonment to the appellants when minimum 13 Judgment in Cri. Appeal 1248-19punishment for the offence is only 20 years imprisonment. Insupport of his submissions, he relied on following judgments.A)Paramjeet Singh @ Pamma vs. State ofUttarakhand, 2011 AIR (SC) 200;B)Suraj Mal vs. The State (Delhi Administration),1979 Cri.L.J. 1087;C)Rai Sandeep @ Deepu and another vs. State ofNCT of Delhi, 2012 AIR (SC) 3157;D)Lalliram and another vs. State of M.P., 2009Supp.AIR (SC) 902;E)Mayur Panabhai Shah vs. State of Gujarat, AIR1983 SC 66;F)Mahindra vs. Sajjan Galpha Rankhamb, AIR2017 SC 2397;G)Lalchand Cheddilal Yadav vs. State ofMaharashtra, 2000 ALL MR (Cri) 1485;H)State of Goa vs. Sanjay Thakran and another,(2007) 3 SCC 755 &I)Umesh Chandra and others vs. State ofUttarakhand, 2021 Supreme (SC) 1190.7.As against this, the learned APP Shri. A. S. Shinde supportedthe impugned judgment and pointed out that the evidence of eyewitness, Maruti (PW-5), has supported the evidence of the victim.Moreover, recovery during the course of investigation is also provedby Dinkar Wagh (PW-3). Further, the procedure adopted for Test 14 Judgment in Cri. Appeal 1248-19Identification Parade, is also proved by Narayan Bomble & AvinashChobe (PW-6 & 7). According to him, the DNA Report on recordsupports the allegations against the appellants – accused. Hepointed out that the prosecutrix has given minute details about theincident and immediately lodged the FIR. He further submittedthat on the very next day of lodging of the FIR, her statement underSection 164 of Cr.P.C. and supplementary statement were recorded.He pointed out that though there was mistake in respect of statingthe correct registration number of motor bike of the appellants –accused by the victim, but in the statement of Maruti (PW-5)recorded during the course of investigation, correct number of themotorcycle of the appellants – accused, is mentioned. He pointedout that the defence counsel though gave suggestions about havingno source of light at the time of incident, but the victim as well asMaruti (PW-5) have straight way denied those suggestions.Further, he contended that when the alleged act of gang rape wascommitted on the point of knife, then obviously the victim musthave remained silent and without any resistance. However, hepointed out that Bajra crop on the spot of the incident was founddestructed as mentioned in the spot panchanama. So far asallegation of tampering of sample as levelled by the learned counsel 15 Judgment in Cri. Appeal 1248-19for the appellants – accused is concerned, the learned APPsubmitted that when the appellants- accused were not havingcriminal antecedents and the victim was also not known to theinvestigating officer, then there was no reason for the investigatingofficer for such tampering of sample to implicate the appellants/accused.8.He further pointed out that all the recovery panchanamas inrespect of seizure of clothes of the appellants / accused, wererecorded one by one within the similar time gap since all theappellants / accused were residing in the same area. Moreover,Dinkar Wagh (PW-3) and Kalpana Rathod (PW-13) were not givensuch type of suggestions in the cross-examination renderingrecoveries doubtful. He pointed out that no illegality wasconducted in holding Test Identification Parade of the appellants /accused, which was in fact conducted after due permission fromthe concerned Magistrate. The witnesses have specifically deniedthe suggestions given by the defence counsel that they had alreadyseen photographs of the appellants / accused and that they wereaware of their names after the same were disclosed on TV and innewspapers. He pointed out that the appellants / accused throughtheir defence counsel never raised any objection in respect of 16 Judgment in Cri. Appeal 1248-19manner in which Test Identification Parade was conducted. Hepointed out that semen of accused Nos.2 & 4 was detected on theclothes of the victim and the history given by the victimimmediately on the next day to the Medical Officer, indicates thatfour persons committed rape on her. Thus, he pointed out that allthe incriminating circumstances against these appellants /accused, are properly established by the prosecution and therefore,no interference is required in the impugned judgment. Thus, heprayed for dismissal of all the appeals. The learned APP relied onfollowing judgment.Laxman Madhavrao Chamalwar vs. State ofMaharashtra and another in Criminal AppealNo.274 of 2017 & Criminal appeal No.294 of2017, delivered by this court on 19/07/2022.9.On the other hand, the learned counsel for respondent No.2 –victim in Criminal Appeal Nos.1141 of 2019 supported theimpugned judgment and adopted the submissions of the learnedAPP. The learned counsel Mr. S. P. Salgar for the victim in CriminalAppeal No. 1141 of 2019 has added that Maruti (PW-5) also statedcorrect number and make of the vehicle i.e. motor bike on which allthe appellants – accused had come on the spot. He submitted thatminor contradictions and lapses in the procedure conducted in Test 17 Judgment in Cri. Appeal 1248-19Identification Parade can be ignored, since those are not onmaterial aspect. Learned counsel Mr. S. P. Salgar relied onfollowing judgments.A)Rafiq vs. State of U.P., (1980) 4 SCC 262;B)State of Punjab vs. Gurmit Singh and others,(1996) 2 SCC 384;C)Wahid Khan vs. State of Madhya Pradesh,(2010) 2 SCC 9;D)State of Maharashtra vs. Suresh, (2000) 1 SCC471 & E)Mohammed Ashfaq Dawood Shakh @ Baba vs.State of Maharashtra in Criminal AppealNo.210 of 2015, delivered by this court atPrincipal Seat, on 25/11/2021.10.The learned counsel Ms. Kalpana Kulkarni - Sonpawale forrespondent No.2 victim in Criminal Appeal No.1248 of 2019 alsosubmitted that the learned trial judge has rightly convicted all theappellants / accused. She pointed out that the victim has statedeverything about the incident by specifically mentioning that theact of gang rape was committed by all the appellants / accused.She further added that the evidence of the victim as well as eyewitness – Maruti (PW-5) is reliable and trustworthy and there wasno proper explanation by the appellants / accused in respect of 18 Judgment in Cri. Appeal 1248-19their false involvement as alleged by prosecution. Thus, she prayedfor dismissal of their appeals. 11.Heard rival submissions. Also perused the entire material onrecord alongwith record and proceedings of the original case. 12.The prosecution has in all examined 14 witnesses. So far asmain incident is concerned, the evidence of victim (PW-1) andMaruti (PW-5) i.e. her boyfriend is of utmost important. Further,there are other witnesses i.e. panch witnesses of the spot of theincident, seizures of clothes of accused and in respect of TestIdentification Parade. The evidence of Medical Officers, whoexamined the victim, Maruti (PW-5) and the accused is also there.Apart from the aforesaid oral evidence, the prosecution has alsorelied on following documentary evidence.Sr.No.Name of the documentExhibit No.1.FIR352.Statement of victim under Section 164 ofCr.P.C. 383.Spot panchanama514.Seizure panchanama of clothes of PW-5Maruti Waghmare 525.Seizure panchanama of clothes of victim 536.Memorandum statements, discoverypanchanamas 56 to 637.The medical examination of accusedNo.1 Sk. Tayyab 66 & 67 19 Judgment in Cri. Appeal 1248-198.Test identification parade panchanamas 89, 93 and 949.House search panchanama and seizurepanchanama of bike10210.Medical certificates of PW-5 MarutiWaghmare 114 & 11511.Letters issued to Medical Officers119, 120, 122, 134,135, 136, 145, 146& 14712.Identification forms of victim 19613.Identification of accused persons 123 to 12614.Medical examination of vitim 131 & 13215.Forensic Medical Examination of accused12116.Printed FIR 14117.The correspondence made by theinvestigating officer for providing panchwitnsses and report of dog squad,property receipts, arrest panchanamas ofaccused persons, correspondence madewith J.M.F.C., Aurangabad and ForensicSciences Lab, letter to Tahsildar,letter toG.M.C.H. for vaccine carrier and lettersto FSL were also exhibited by theprosecution during the evidence of PW-13 Kalpana Rathod.-18.Station diary extract of MIDC CIDCO 18019.Letter to Talathi Sunderwadi 18120.7/12 extract of spot filed 18221.Letter for registration particulars ofmotorbike No. MH-20-CD-7989 andinsurance particulars of said vehicle 183 & 18422.Registration particulars of motor bike No.MH-20-BS-1754-23.Spot map18724.The reports of Chemical Analyser 181 & 191 20 Judgment in Cri. Appeal 1248-1913.On perusal of record it appears that police had recordedstatements of the victim many times. Initially, victim had statedcommission of rape on her only by two accused but duringsupplementary statement, she came with the case that all fouraccused committed forcible sexual intercourse with her. Onperusal of evidence of victim (PW-1) it is evident that on27/08/2015 at about 8.30 p.m. she alongwith Maruti (PW-5), herboyfriend, had gone to bypass road behind Cambridge School onhis motorcycle. After parking the motorcycle there, they stayedthere for some time. At the relevant time, four persons came onone Discover motorcycle bearing No. MH-20-CD-7989. Thoughthey crossed them, but returned back and came near them. Twoof them caught hold of Maruti (PW-5) and started beating him. Theremaining two started outraging her modesty and they forcibly tookher to nearby field. One was around 28 - 29 years of age havinglittle beard and other was 20 to 23 years old having fair complexionand height around 5 feet. Further one of the accused also cut thepetrol pipe of their motorcycle. At the time of incident, victim waswearing a green Patiyala dress. Those accused persons tried toremove her clothes and also removed their pants and committedrape on her. The accused having beard, committed rape on her 21 Judgment in Cri. Appeal 1248-19and thereafter other accused committed rape on her when first onehad caught hold of her hands. The third accused person havingage of 20 - 22 years with fair complexion came there andcommitted rape on her. Some of them also performed oral sexwith her. When all three of them committed forcible sexualintercourse with her, fourth person having age of 28 to 29 yearsand 5.5 fit height also came there and committed rape on her.However, upon seeing the police jeep, they fled from the spot.According to the victim (PW-5) they were speaking in Hindilanguage. 14.Victim (PW-1) further stated that police jeep then came nearher and Maruti (PW-5) was accompanying with the police and hisshirt was torn. Police tried to trace the accused persons, but couldnot succeed. Victim and Maruti were taken to CIDCO, PoliceStation and thereafter Chikalthana Police Station where the victimlodged report of the incident i.e. FIR Exhibit-35. The offence wasaccordingly registered with Chikalthana Police Station at 2.30 to3.00 a.m. on the next day i.e. 28/08/2025. She got medicallyexamined at Ghati Hospital by Dr. Shamalee Mistry (PW-10). Shewas admitted in the hospital, wherein police seized her clothes,consisting green Kurta, red Patiyala, red-green Othani, Mehandi 22 Judgment in Cri. Appeal 1248-19coloured nicker. She also stated about recording of her statementbefore concerned Judicial Magistrate First Class on 29/08/2025under Section 164 of Cr.P.C. 15.Then she has deposed about Test Identification Parade inHarsool Central Jail for which she was directed to remain presenton 01/09/2015. According to her, the Test Identification Paradewas conducted between 1.00 to 1.30 p.m. and at that time Maruti(PW-5) was taken out side and thereafter she was taken to a hallwhere Tahsildar Warade was present. Seven persons of a similarage group were made to stand in a queue, and Warade Madamasked her to identify the accused from among them. Accordingly,she identified one of them. Thereafter, on 09/09/2015, she wasagain called to Harsool Jail and during the Test IdentificationParade held at that time, she identified three persons whocommitted rape on her from among the 21 persons standing in thequeue. She also admitted about her signatures on bothpanchanamas dated 01/09/2015 and 09/09/2015. Her DNAsamples were also taken in Ghati Hospital. She identified accusedNo.1 Shaikh Tayyab and accused No.3 Shaikh Jamil as the personswho were holding Maruti (PW-5), assaulted her and damaged pipeof their motor bike. She deposed that accused No.4 had committed 23 Judgment in Cri. Appeal 1248-19rape on her by pressing her mouth and threatening her at the pointof knife. She identified accused No.2 Taleb Ali as a person, whoattempted to remove her clothes. She also identified her clothesconsisting Article-1 green torn piece of top, Article-2 Mehandicolour nicker, Articel-3 red Salar, Articel-4 Red-green Odhani andArticle-5 green top.16.In her cross-examination, she admitted her affair with Maruti(PW-5) and that she had mentioned only two assailants in the FIRand the bike number stated as MH-20-CD-7980 instead of 7989.However, it seems that she has clarified later on the number of bikeas MH-20-CD-7989. Though she admitted that there was somedarkness and no street lights on Swangi bypass road but accordingto her it was a day of full moon night. She denied the height ofBajra crop wherein she was taken by the accused was less then herheight. She denied as that it was raining on the day of incident.She specifically denied the suggestion that she alongwith Maruti(PW-5) had gone to Swangi bypass road for having sex but sincepeople noticed them in comprising position, they went toCambridge Chowk. 24 Judgment in Cri. Appeal 1248-1917.To support the version of the victim (PW-1), the prosecutionhas examined her boyfriend Maruti (PW-5), who was with her atthe time of the incident. According to Maruti (PW-5) they had gonenear Cambridge School at about 8.00 to 8.30 p.m. and when theyhad stopped there, four persons came on a bike and startedassaulting them. According to him, the bike of assailants wasDiscover and two of them dragged the victim in Bajra crop andother two started assaulting him. He has deposed that accusedwere tearing clothes of the victim and the victim was shouting as ‘okpok okpok’. One of the two accused who was assaulting him, went totwo others who dragged the victim. He also gave description of theaccused as having black face and the person who was assaultinghim was thin and fair in complexion. He was wearing a peacockcoloured shirt. He further stated that he somehow escaped fromthe accused and ran towards Cambridge School. He disclosed theincident to police and went towards victim in the police vehiclethereafter. Victim was lying in Bajra crop who told him that two ofthe accused committed rape on her and further told that afternoticing the police vehicle, all four fled from the spot. He furtherstated that they were taken to MIDC CIDCO Police Station andsince the spot of incident was within the limit of Chikalthana Police 25 Judgment in Cri. Appeal 1248-19Station, they were taken to Chikalthana Police Station. He thenshowed the spot to police on 28/08/2015. His clothes were alsoseized. He stated about recording of his statement on 29/08/2015by Judicial Magistrate (First Class), Aurangabad. 18.Like victim, he has also stated about Test IdentificationParade held on 01/09/2015, wherein he identified one of theaccused persons as standing at serial No.4 in the queue. Headmitted his signature on the panchanama to that effect onExhibit-83. He also deposed about second Test IdentificationParade dated 09/09/2015, wherein he identified remaining threeaccused persons standing at serial Nos.5, 10 & 16 in the queue. Hespecifically deposed that when all the accused committed rape onvictim, she was frightened and therefore, could tell him about twopersons only. He specifically identified Accused No. 2, Taleb Ali andAccused No. 3, Shaikh Jamil, as the persons who caught hold ofhim and assaulted him. He further admitted that accused No.1Shaikh Tayyab and and accused No.4 Sk. Ashafak being thepersons who committed rape on the victim. He identified theclothes he was wearing at the time of the incident namely, a T-shirtand a banian at Article -31. 26 Judgment in Cri. Appeal 1248-1919.In the cross-examination, he stated that he was at a distanceof 100 meters from the victim when some of the accused wereassaulting him. He spoke about raising shout by him and alsoadmitted that he was having a mobile handset at the time of theincident. According to him, police remained at the spot of incidentfor about 20 to 25 minutes and then they were taken to MIDCPolice Station. He admitted that police from MIDC CIDCO PoliceStation did not enter in Bajra crop, but only verified the spot fromthe road. He then stated that there was rain after the incident andon the next day he noticed the condition of Bajra crop. Accordingto him, the victim was not in condition to speak when the policepersons arrived at the spot. Further, according to him on28/08/2015 he went to G.M.C.H. Aurangabad alongwith the victimin one vehicle and there he was confronted with the history givenby him before Medical Officer i.e. PW-4. He specifically denied thathe had gone to Test Identification Parade alongwith the victim andher parents. He also denied that he changed his statement beforethe police and Judicial Magistrate First Class to avoid falsity. 20.Then comes the evidence of PW-3 Dinkar Wagh, who is apanch witness. According to him, the memorandum statements ofall the accused persons, were recorded and the accused showed 27 Judgment in Cri. Appeal 1248-19their willingness to produce their clothes and bike used in thecrime. Accused No.4 had in fact shown willingness to producevehicle. Accordingly, memorandum panchanama and discoverypanchnama Exhibits-56 to 62 were carried out, which are dulyproved by Dinkar Wagh (PW-3). Despite searching cross-examination, nothing adverse to the prosecution case, has beenbrought on record. Though this witness admitted that accusedwere seated at the back side of the vehicle, but he remained firm onthe point that at the instance of accused persons, police personsand panch witnesses went to their respective houses and recoverypanchanamas were prepared. Though the learned counsel for allthe accused raised suspicion that all these discovery panchanamasare stereotype and were made successively by leaving short timegaps in between. However, it is pertinent to note that all theaccused are resident of one and the same area and therefore, therecovery at the instance of accused persons cannot be doubted.This witness has specifically denied that he deposed falsely onlyout of acquaintance with API Rathod and that the bike was seizedfrom accused No.1 in his presence. It is to be noted that Maruti(PW-5) was having best opportunity to note the number of the bikewhich according to him was MH-20-CD-7989. This witness has 28 Judgment in Cri. Appeal 1248-19also deposed that API Rathod seized one Bajaj motorcycle bearingNo. MH-20-CD-7989 from accused No.1. As such, the evidence ofthis witness in respect of memorandum and discovery panchnamasappears reliable and trustworthy. 21.Narayan Bomble (PW-6) and Avinash Chobe (PW-7) are thewitnesses on Test Identification Parade. Both of them supportedthe prosecution’s case stating that Test Identification Parades ofthe accused persons were held on 01/09/2015 and 09/09/2015 atHarsul Central Jail by Executive Magistrate Warade. According toNarayan (PW-6), victim (PW-1) and Maruti (PW-5) had identified theaccused on 01/09/2015. He has given specific details about themanner in which the Test Identification Parade was conducted andalso admitted the panchanama to that effect. Despite searchingcross-examination, nothing adverse which could render TestIdentification Parade doubtful, is brought on record through thesetwo witnesses. Avinash (PW-7) has also given details of the TestIdentification Parade and stated as to how the victim and Maruti(PW-5) identified all the three accused on 09/09/2015. Thus, itappears that the prosecution has definitely proved the panchnamasin respect of Test Identification Parades. 29 Judgment in Cri. Appeal 1248-1922.The learned counsel for the appellants - accused raisedserious doubt in respect of procedure adopted for holding the TestIdentification Parade. They specifically pointed out that the TestIdentification Parade held on 09/09/2015 was in fact contrary tothe guidelines for holding Test Identification Parade as mentionedin Criminal Manual under Chapter- I para / clause 16. Theyspecifically pointed out that a separate Test Identification Paradehas to be conducted for separate accused or at the most twoaccused can be identified in one Test Identification Parade, but inthe instant case, three accused persons were asked to stand in thequeue at once. However, learned counsel Mr. Suresh Salgar forrespondent No.2 victim submits that considering the object ofholding Test Identification Parade the above said irregularities i.e.identifying three persons in one Test Identification Parade, cannotbe said to be illegal or preserve. For that purpose, he heavily reliedon judgment of the Hon’ble Apex Court in the case of State ofMaharashtra vs. Suresh, (2000) 1 SCC 471, wherein it is held inpara 22 as follows:“22.If potholes were to be ferreted out from theproceedings of the Magistrates holding suchparades possibly no test identification parade canescape from one or two lapses. If a scrutiny is 30 Judgment in Cri. Appeal 1248-19made from that angle alone and the result of theparade is treated as vitiated every test identificationparade would become unusable. We remindourselves that identification parades are notprimarily meant for the court. They are meant forinvestigation purposes. The object of conducting atest identification parade is twofold. First is toenable the witness to satisfy themselves that theprisoner whom they suspect is really the one whowas seen by them in connection with thecommission of the crime. Second is to satisfy theinvestigating authorities that the suspect is the realperson whom the witnesses had seen in connectionwith the said occurrence. So the officer conductingthe test identification parade should ensure that thesaid object of the parade is achieved. If he permitsdilution of the modality to be followed in a parade,he should see to it that such relaxation would notimpair the purpose for which the parade is held.” Thus, in view of the above discussion, there might beirregularity in holding the Test Identification Parade of09/09/2015, but it cannot be said totally perverse and illegal sincethe victim as well as other eye witness Maruti (PW-5) had identifiedthree accused being the persons who committed forcible sexualintercourse with the victim. As such, the submission of the 31 Judgment in Cri. Appeal 1248-19learned counsel for the appellants in respect of Test IdentificationParade being conducted illegal has to be discarded. 23.The prosecution has further examined PW-4 Dr. Syed Aqeeb,who had examined accused No.1 Shaikh Tayyab Shaikh Babulal on29/08/2015. According to this witness, he collected samples ofaccused No.1 and forwarded to Chikalthana Police Station. He alsoissued a medical certificate as per Exhibit-67 in respect of accusedNo.1. Though faced searching cross-examination, but nothingbeneficial to the accused has come on record from this witness.This witness has also examined Maruti (PW-5) and issued injurycertificates at Exhibits-114 & 115. The injury certificate Exhibit-114 indicates history of assault on 27/08/2015 at back side ofCambridge School, Jalna Road. The injuries sustained by Maruti(PW-5) in the said certificate, are in nature of abrasion and blunttrauma. Though the colour of the injury is not mentioned by thiswitness, but he has specifically stated the age of injuries within 24hours before examination. Further, as per Exhibit-114 there wassimple injury to Maruti (PW-5) and it has also mentioned in thehistory about the place of assault being at back side of CambridgeSchool. Thus, nothing doubtful is found in the evidence of thiswitness Dr. Syed Aqeeb (PW-4). 32 Judgment in Cri. Appeal 1248-1924.Pratik Jain (PW-9) is the person, who had examined accusedNo.4 Shaikh Ashfak. During examination, he also collectedsamples of accused No.4 and samples for DNA. According to him,he sealed these samples and sent to investigating officer KalpanaRathod. The form Exhibits-120 & 121 indicate that examination ofaccused No.4 was conducted and samples were taken out with hisconsent. He also deposed that on 02/09/2015 API KalpanaRathod forwarded the letter Exhibit-122 for collection of samples ofaccused in DNA kits and also provided four DNA kits to him.Accordingly, this witness filled identification form of all accusedpersons and collected blood samples of all accused persons in DNAkits and after sealing it handed over it to concerned constable.This witness has denied that DNA kit was expired. This witnesshad collected eight samples during the examination of accusedNo.4 Shaikh Ashafak and noticed one planter injury to him.25.Thereafter, the prosecution has examined Dr. ShamaleeMistry (PW-10), who had examined the victim on 28/08/2015.According to her, she recorded history narrated by the victim,examined her and thereafter collected her samples. From herevidence, it transpires that she noticed signs of penetrative sexualassault on the victim and there was also possibility of oral 33 Judgment in Cri. Appeal 1248-19intercourse with the victim. She examined the victim with herconsent and prepared the medical report Exhibit-132. She hasadmitted that Exhibit-130 does not bear endorsement of G.M.C.Hospital. The entry recording arrival of the victim, was also nottaken in the hospital record. She deposed that she had givencounseling to the victim and also emergency contraception. Shewas unaware whether the victim had taken a bath before medicalexamination. Further, according to her, signature of examiningdoctor does not necessary on survivor’s consent form. According toher the victim was habituated to sexual intercourse since fourmonths and the last intercourse with the victim was one monthbefore the incident which was with Maruti (PW-5). 26Dr. Priya Salve (PW-14) had collected the samples of thevictim for DNA purpose and according to her on 09/09/2015 shecollected those samples with the consent of the victim and alsoadmitted identification form to that effect at Exhibit-196. Shecollected the samples and then sealed and handed over to LPCBadge No.1242. According to her, she had conducted generalexamination of the victim on 09/09/2015. Though she stated that2ml blood was to be collected for DNA purpose but the investigatingofficer did not provide the DNA kits. However, it appears that she 34 Judgment in Cri. Appeal 1248-19had sealed the samples and same were handed over to police. Shehad also verified the identity of the victim and according to her, itwas not necessary to mention the blood group in identificationform at Exhibit-196. She has specifically denied that she deposedfalsely at the instance of police. It is extremely important to notethat though this witness admitted that DNA kit was not provided toher, but the letter Exhibit 172 clearly indicates that API Rathod hadsent the victim to GMCH Aurangabad through LPC Rukhminialongwith DNA kits for collection of DNA samples of the victim.Therefore, the aforesaid admission on the part of Dr. Priya Salve(PW-14) cannot be given any significance. 27.Prosecution has examined Dr. Somyya Siraj (PW-11), who hadexamined accused No.3 Shaikh Jamil Shaikh Hussain. From herevidence it transpires that she had received a letter for medicalexamination of accused No.3 and collection of samples. API Rathodalso requested to verify the age of accused No.3. This witnessexamined accused No.3 and collected his samples namely venousblood, pubic hair, nails, scalp hair, swab from glans and swab fromurethral orifice. She sealed collected samples and forwarded thesame under her letter Exhibit-135 to the police station. Accordingto this witness, accused No.3 Shaikh Jamil was competent for 35 Judgment in Cri. Appeal 1248-19committing sexual intercourse. She also issued medical certificateto that effect as per Exhibit-136. Though she admitted that she didnot mention the age of injury of accused No.3, the colour of injurywhich denotes the age of injury is mentioned. According to her,injuries such as contusions and abrasions are possible while doingmason work or due to a fall on a rough surface. She specificallyadmitted that semen sample of accused No.3 was not collected.The defence has not seriously disputed the medical examination ofaccused no.3. The X-ray for his age verification was also taken.28.Evidence of Dr. Farhana Khan (PW-12) is in respect ofexamination of accused No.2 Taleb Ali Shaukat Ali on 31/08/2015.According to her, two abrasions on left elbow and forearm werefound on the person of accused No.2. She also noticed some scars.According to her, accused had taken a bath after the incident andchanged his clothes. She forwarded the samples of accused in asealed condition to CA. As per her opinion and certificate issuedby her as per Exhibit-147, accused No.2 Taleb Ali was competent toperform sexual intercourse. According to her the semen sample ofaccused No.2 could not be obtained for want of discharge. Sheadmitted that if a person takes a bath, then any incriminating 36 Judgment in Cri. Appeal 1248-19circumstance is not possible. Thus, it appears that semen samplesof accused No.2 and accused No.3 were not collected.29.Then comes the evidence of Kalpana Rathod, API (PW-13),who has investigated the present crime. This witness has deposedabout her entire investigation. At the relevant time, she wasserving as API at Chikalthana Police Station and on 28/08/2015investigation of this crime was handed over to her. According toher, she prepared spot panchanama Exhibit-51, seized petrol tubeof bike of witness Maruti (PW-5), foot wear, one single chappal andpiece of dress of the victim. She also snapped pictures of the spotand called dog squad and searched accused with the help of dogsquad. Admittedly, accused persons could not be traced with thehelp of dog squad. She then sent the victim and Maruti (PW-5) formedical examination, seized their clothes and prepared receipts.During the investigation, she arrested the accused persons, seizedbike bearing registration No. MH-20-CD-7989, clothes and knife.She also arranged Test Identification Parade, wherein the victimand Maruti (PW-5) identified the accused on 01/09/2015 and09/09/2015. She then sent the victim and accused for medicalexamination and collected samples and forwarded the same to FSL,Kalina. She then collected the reports after filing the charge sheet. 37 Judgment in Cri. Appeal 1248-19She has also identified the articles, panchanamas letters shown toher. She has specifically stated that FSL Kalina had returned thesent up in muddemal articles except DNA samples, which mighthave used for analysis.30.In the cross-examination she has given certain admissionssuch as she was handed over the investigation of offence underSection 376(d) of IPC for the first time, except accused No.3 she didnot verify age of other accused. According to her, the victim washaving affair with Maruti (PW-5). She admitted that, at the time oflodging the report, the victim was not wearing the clothes she hadworn at the time of the incident and also that she did not recordthe statement of LPC of MIDC CIDCO Police Station, who hadprovided clothes to the victim. She also admitted that the foot wearfound on the spot did not belong to any of the accused persons andthat the victim and Maruti (PW-5) were using mobile phones, butshe did not seized the same. She admitted that from 28/08/2015to 03/09/2015 the samples of the victim were in her custody andthe mental condition of victim was not proper when she came tolodge the report. 38 Judgment in Cri. Appeal 1248-1931. Learned senior counsel Mr. Rajendra Deshmukh argued thatthe evidence of the victim as well as her boyfriend Maruti (PW-5)appears doubtful. He pointed out that the victim stated in hertestimony that it was dark on Swangi Bypass Road, and therefore,the possibility of recognizing the appellants-accused was very dim.However, it is significant to note that the victim has stated that atthe relevant time, there was full moon night and in the light ofmoon, she had seen the appellants – accused. It is to be noted thatthe learned senior counsel upon verifying calendar of the relevantdate, submitted that it was not actual full moon night but the fullmoon night was after two days from the day of the incident. Evenconsidering that also the inference can safely be drawn that on theday of incident also there was sufficient moonlight as stated by thevictim. Learned senior counsel further pointed out that Maruti(PW-5) admitted that there was rain just after the incident andtherefore, possibility of not having moonlight on that night due tocloudy weather cannot be ruled out. However, it is important tonote that even though it was admitted by Maruti (PW-5) that afterthe incident there was rain but he has not specifically stated thatheavy clouds were there and no moonlight was available.Therefore, it cannot be inferred that the sky was totally cloudy. 39 Judgment in Cri. Appeal 1248-19Admittedly, the victim had stated registration number of the bike ofthe appellants – accused incorrectly at initial stage. However, shelater on corrected the same by changing only last digit of the saidnumber. Moreover, Maruti (PW-5), who had an opportunity to seeregistration number of that bike has correctly stated the same.Therefore, mistake at initial stage in stating the number cannot besaid to be adverse to the case of the prosecution. Learned seniorcounsel further pointed out that the police have admitted the factthat they were not carrying any measurement tape at the time ofspot panchanama but still the distance in meter has been stated inthe spot panchanama itself. Thus, he stated that the spotpanchanama must have been prepared without going to the spot.However, the spot panch Mr. Umakant Dhatinge (PW-2) supportedthe story of the prosecution that the spot panchanama was drawnat the spot of incident. The distance in meters is mentioned only atone place in the spot panchnama; otherwise, the actual spot wherethe rape was committed is described only with approximatedimensions. Moreover, it has come in the evidence of spot panchthat Bajra crop on the spot was destructed. Therefore, in the lightof this evidence, the spot panchanama cannot be doubted.Learned senior counsel also pointed out that the victim stated that 40 Judgment in Cri. Appeal 1248-19there are milk cans attached to the bike of the appellants – accusedbut in the photo of said bike, no such arrangement for affixing milkcans is shown. Admittedly in the photograph of the said bike nosuch arrangement can be seen but merely because of absence ofsuch arrangement the testimony of victim cannot be doubted sincethe milk cans can be tied with the help of strings to that bikewhich can be removed after untying those milk cans. Moreover,this cannot be treated as doubtful circumstance and cannot washout the entire story of prosecution since it is not on the materialaspect. Therefore, the prosecution story cannot be doubted on thebasis of aforesaid discrepancies. 32.The learned counsel Mr. S. J. Salunke, as well as the learnedsenior counsel Mr. Rajendra Deshmukh, vehemently argued thatthe victim has been found improvising her version from time totime since the beginning, and therefore, her testimony cannot berelied upon. They further contended that, due to this aspect, theprosecutrix cannot be considered a witness of sterling quality, andas such, her entire evidence deserves to be discarded. For thatpurpose, learned counsel Mr. S. J. Salunke relied on judgment ofRai Sandeep @ Deepu and another vs. State of NCT of Delhi